Dutch Couple Sues for Recognition of their Same-Sex Marriage

Chretien van der Leest und Edwin Veldt are living in Tyrol and are running holiday homes in St. Jakob im Haus. Both are citizens of the Kingdom of the Netherlands and had entered there into a registered partnership. When the Netherlands opened up marriage for same-sex couples in 2001, they married. With the support of Rechtskomitee LAMBDA (RKL), Austria’s LGBT civil rights organisation, the couple has started a lawsuit for recognition of their same-sex marriage in Austria.

Union citizenship guarantees the couple to reside in any member-state of the Union and to work there, without having to accept disadvantages by using these freedoms.

This however exactly is what they are facing in Austria. While marriage between a man and a woman without any problem and always are recognised in Austria, their marriage, lawfully concluded in a Union sister-state, shall be downgraded to a registered partnership, which in Austria is only a second-class marriage. This downgrade is merely based upon a decree by the Minister of Interior which has no basis in Austrian legislation. Under Austrian legislation their marriage in fact is clearly recognized as a marriage (§ 17 International Private Law Act).

Violation of Union law

The married couple Veldt-van der Leest thus has to pay for the exercise of their Union citizenship and fundamental Union freedoms, namely with the downgrade of their marriage to an inferior registered partnership.

This downgrade could distract married couples from exercising their Union citizenship and fundamental Union freedoms, and therefore constitutes a violation of Union law. The married couple therefore decided to address the courts. At the civil status office they applied for a repetition of their marriage, in order to exclude doubts about the validity of their marriage. The 1st Executive Decree on the Austrian Marriage Act allows them to repeat their marriage if they have doubts on its validity or continuance (§ 13).

The civil status office refused them this repetition of marriage and the governor of Tyrol confirmed. The married couple now have taken their case to the Austrian Constitutional Court and to Administrative Supreme Court, and they asked these courts to refer their case to the Court of Justice of the European Union for a preliminary judgment.

„The married couple is determined to take their case up to the highest European courts“, says Dr. Helmut Graupner, president of Austria’s LGBT civil rights organisation Rechtskomitee LAMBDA (RKL) and counsel of the applicants.

Rechtskomitee LAMBDA (RKL), founded in 1991, on a supra-partisan and denominational level is working for the implementation of human rights for homo- and bisexual men and women. In its honorary board it convenes as prominent members as former Prime Minister Dr. Alfred Gusenbauer, President of Federal Parliament Mag. Barbara Prammer, former Minister of Justice Mag. Karin Gastinger, the Honorary President of the Parliamentary Assembly of the Council of Europe Peter Schieder, Federal Ombudsman Mag. Terezija Stoisits, Senator Marco Schreuder, former Director of Public Security Dr. Erik Buxbaum, the former President of National Judges Association Dr. Barbara Helige, the Chairwoman of the National Judges Association’s Working Party on Fundamental Rights Dr. Mia Wittmann-Tiwald, the Vice-President of the Vienna Bar-Association Dr. Elisabeth Rech, the former President of D.A.S.-legal expenses insurance company Dr. Franz Kronsteiner, the President of Weisser Ring Dr. Udo Jesionek, the Secretary General of Amnesty International Austria Mag. Heinz Patzelt, the Vice-Chairperson of the Executive Board of the European Union Agency for Fundamental Rights Univ.-Prof. Dr. Hannes Tretter, and the well-known human-rights experts Dr. Lilian Hofmeister and Univ.-Prof. Dr. Manfred Nowak, the constitutional law professors Univ.-Prof. Dr. Christian Brünner, Univ-Prof. Dr. Bernd-Christian Funk, Univ.-Prof. Dr. Heinz Mayer and Univ.-Prof. Dr. Ewald Wiederin, famous child- and adolescent psychiatrist Univ.-Prof. Dr. Max Friedrich and the Vienna Child- and Youth-Ombudspersons DSA Monika Pinterits and Dr. Anton Schmid, sexologists Univ.-Prof. Dr. Josef Christian Aigner, Univ.-Prof. Dr. Rotraud Perner and Univ.-Lekt. Mag. Johannes Wahala, Life-Ball-Organisor Gery Keszler and many more. October 2nd, 2006, RKL’s 15 years anniversary has been celebrated in historic Ceremonial Act “Against Sexual Apartheid” in the lower chamber of Austrian federal parliament. This first honouring of an lgbt organisation in the plenary session hall of a national parliament worldwide took place in attendance of over 500 guests including highest representatives from the judiciary, administration and politics (http://www.rklambda.at/festakt/index.htm). Since 2010 RKL is a member of the Fundamental Rights Platform of the European Union Agency for Fundamental Rights (www.fra.europa.eu).